Opinion
143 WDA 2023 J-S13025-24
08-23-2024
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY MCCAULEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered January 3, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003188-2014
BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E. [*]
MEMORANDUM
BECK, J.
Anthony McCauley ("McCauley") appeals pro se from the order entered by the Allegheny County Court of Common Pleas dismissing his petition pursuant to the Post Conviction Relief Act ("PCRA"). Because McCauley has failed to present a claim on appeal that is cognizable under the PCRA, we affirm.
This case arises out of McCauley's sexual abuse of the child victim, who was the daughter of McCauley's paramour, from the time she was six years old until she was twelve years old. In August 2013, the victim disclosed McCauley's sexual abuse to her grandmother, who notified police. On November 10, 2014, a jury found McCauley guilty of rape of a child, involuntary deviate sexual intercourse with a child, statutory sexual assault, unlawful contact with a minor, unlawful restraint of a minor, indecent assault of a person less than thirteen years of age, corruption of minors, and endangering the welfare of children. On February 3, 2015, the trial court sentenced McCauley to an aggregate term of twenty to forty years in prison and following a hearing, found him to be a sexually violent predator.
On May 17, 2016, this Court affirmed McCauley's convictions, but remanded the case to the trial court to clarify whether the sentence was a discretionary sentence or a mandatory sentence pursuant to 42 Pa.C.S. § 9718, the latter of which this Court had held was unconstitutional in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014). See Commonwealth v. McCauley, 380 WDA 2015, 2016 WL 2908318, at *4 (Pa. Super. May 17, 2016) (non-precedential decision). On December 6, 2016, contrary to our Court's directive, the trial court resentenced McCauley to twenty years less two days to forty years less four days without placing its reasoning for the sentence on the record. On February 17, 2017, McCauley filed a motion for recusal challenging the trial court's impartiality, which the court denied. McCauley then filed another direct appeal to this Court.
On November 28, 2018, this Court once again vacated McCauley's sentence. We determined that the trial court failed to adhere to our explicit instructions for resentencing McCauley and that the trial court violated McCauley's statutory and constitutional rights by conducting an abbreviated sentencing hearing and not placing its reasons for his sentence on the record. See Commonwealth v. McCauley, 199 A.3d 947, 953 (Pa. Super. 2018). Our Court further determined that the trial court abused its discretion in denying McCauley's motion for recusal, as the court's many violations of sentencing norms and disparaging remarks about the Allegheny County Office of the Public Defender raised substantial doubt as to the court's ability to preside impartially and provide a fair tribunal for McCauley. Id. at 953-54. We thus ordered the recusal of the presiding trial court judge. Id. at 954. On remand, McCauley's case was reassigned to a different trial court judge.
On October 22, 2019, following a hearing consistent with this Court's November 28, 2018 Opinion, the trial court resentenced McCauley to twenty to forty years in prison. The court also ordered McCauley to register as a Tier III sex offender under Subchapter H of the Sex Offender Registration and Notification Act ("SORNA"). McCauley did not appeal from this judgment of sentence.
On September 17, 2020, McCauley filed the instant PCRA petition, pro se, and the PCRA court appointed counsel. On April 22, 2021, McCauley filed an amended PCRA petition. Therein, McCauley argued that his trial counsel was ineffective for failing to object to erroneous jury instructions for his charges of unlawful contact with a minor, unlawful restraint of a minor, indecent assault of a person less than thirteen years of age, and endangering the welfare of children. Amended PCRA Petition, 4/22/2021, at 9. McCauley contended that had his trial counsel objected to the trial court's instructions for these crimes, the jury would have convicted him of lower-graded versions of these offenses. Id. at 9. Additionally, McCauley averred that in his October 22, 2019 sentence, the trial court wrongly ordered him to register as a Tier III sex offender under Subchapter H of SORNA when the court should have ordered him to register under Subchapter I of SORNA. Id. at 9-10.
In 2018, our General Assembly bifurcated SORNA within the Sentencing Code into two distinct subchapters - Subchapter H and Subchapter I. Subchapter H governs offenders who committed triggering crimes on or after December 20, 2012. Subchapter I applies retroactively to those offenders who committed offenses before that date. Commonwealth v. Torsilieri, 232 A.3d 567, 580 (Pa. 2020).
Further, McCauley argued that his trial counsel was ineffective for failing to properly litigate a pretrial motion to correct the criminal information after the magisterial district judge dismissed his charges of rape of a child and statutory sexual assault, but the Commonwealth included the charges in the criminal information. Id. at 9. McCauley's trial counsel filed a motion to correct the criminal information after the Commonwealth included the dismissed charges in the criminal information. See Motion to Correct Criminal Information, 5/1/2014. For reasons that remain unclear from the record, however, the original trial court judge wrote and signed an order denying this motion, but never filed the order with the clerk of courts. See N.T., 12/8/2022, at 7-13. McCauley asserted that because of the inaction of trial counsel in ensuring the formal resolution of the issue, he was improperly convicted of rape of a child and statutory sexual assault, and that direct appeal counsel should have challenged those convictions on the basis that the Commonwealth improperly included the charges in the criminal information. Amended PCRA Petition, 4/22/2021, at 9.
On June 30, 2022, following the filing of several supplemental PCRA petitions and answers from the Commonwealth, the PCRA court entered an order granting relief on McCauley's claims that trial counsel was ineffective for failing to object to the jury instructions for the four identified crimes and his claim that the trial court erroneously ordered him register as a Tier III sex offender under Subchapter H, as opposed to Subchapter I, of SORNA. PCRA Court Order, 6/22/2022. The court stated that it would resentence McCauley based on these rulings. Id. In the same order, the PCRA court also scheduled an evidentiary hearing on McCauley's ineffective assistance of counsel claim relating to the inclusion of the dismissed charges in the criminal information. Id. On November 17, 2022, the PCRA court held an evidentiary hearing on this ineffectiveness claim. On January 3, 2023, the PCRA court resentenced McCauley to an aggregate term of twenty to forty years in prison and ordered him register as a Tier III sex offender under Subchapter I of SORNA.
On January 3, 2023, the PCRA court denied relief on McCauley's ineffective assistance of counsel claim relating to the inclusion of the dismissed charges in the criminal information. Relying on this Court's decision in Commonwealth v. Pettersen, 49 A.3d 903 (Pa. Super. 2012), the PCRA determined that although the Commonwealth did not adhere to Pennsylvania Rule of Criminal Procedure 544 in reinstituting the charges of rape of a child and statutory sexual assault, the refiling of the charges was permissible because it did not occur after the expiration of the statute of limitations and was not done to harass McCauley. See PCRA Court Opinion, 6/26/2023, at 9-11. The PCRA court further determined that McCauley did not suffer prejudice from the Commonwealth's failure to adhere to rule 544 because he was on notice of the charges against him and the acts he allegedly committed, and thus, his defense was not hindered by the inclusion of these charges in the criminal information. See id. at 10-11. Thus, the PCRA court concluded that neither McCauley's trial counsel nor his direct appeal counsel could be found ineffective for failing to pursue these issues prior to trial or on direct appeal, as their failure to do so did not result in prejudice. Id. at 11.
Rule 544 provides: "When charges are dismissed or withdrawn at, or prior to, a preliminary hearing, or when a grand jury declines to indict and the complaint is dismissed, the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges." Pa.R.Crim.P. 544(a).
On January 30, 2023, McCauley timely appealed to this Court. In the notice of appeal, McCauley indicated that the appeal was from both the January 3, 2023 order denying in part Appellant's PCRA petition and from the judgment of sentence the PCRA court entered the same date. By Order dated February 22, 2023, this Court directed McCauley to show cause as to why the instant appeal should not be quashed as a single appeal improperly taken from multiple final orders at the same trial court docket. On March 1, 2023, McCauley filed a timely response indicating that the appeal should have been taken only from the January 3, 2023 order denying, in part, his PCRA petition. The same day, McCauley also filed an application for leave to file an amended notice of appeal. This Court granted the application by order dated March 3, 2023 and directed McCauley to file the amended notice of appeal in the Allegheny County Court of Common Pleas within ten days. McCauley timely filed the amended notice of appeal on March 6, 2023 and indicated in the notice of appeal that the appeal is only from the January 3, 2023 order denying, in part, his PCRA petition. Accordingly, on March 10, 2023, this Court discharged the show-cause order.
Additionally, on January 30, 2023, along with the amended notice of appeal, McCauley filed a motion for a Grazier hearing in which he requested that the PCRA court allow him to represent himself on appeal from the denial, in part, of his PCRA petition. The PCRA court held a Grazier hearing on March 6, 2023, after which the court permitted McCauley to proceed pro se for his appeal having found that he made a knowing, intelligent, and voluntary waiver of his right to appellate counsel. Both the PCRA court and McCauley have complied with Pennsylvania Rule of Appellate Procedure 1925. McCauley now presents pro se the following issues for review:
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
I. Did the PCRA [c]ourt err by imposing an order that failed to conform to the strict requirements of Pa.R.Crim.P. 114 and the Rules of Appellate Procedure 1921?
II. Did the PCRA [c]ourt err in its analysis of Pa.R.Crim.P. 544 by misapplying Commonwealth v. Pettersen, 49 A.3d 903 (Pa. Super. 2012), which led the PCRA [c]ourt to believe that all charges must be dismissed prior to a defendant being afforded a new preliminary hearing?
McCauley's Brief at vi.
We review an order denying a PCRA petition to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). "This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted). "However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Finally, we may affirm a PCRA court's decision on any grounds if the record supports it." Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quotation marks and citation omitted)
Both issues that McCauley presents on appeal raise claims of trial court and PCRA court error stemming from the inclusion of the charges of rape of a child and statutory rape in the criminal information after the magisterial district court had dismissed those charges. See McCauley's Brief at 2-8. First, McCauley argues the trial court erred in denying his motion to correct the criminal information in a signed, undocketed order in violation of Pennsylvania Rule of Criminal Procedure 114. Id. at 2-4. Second, McCauley argues that the PCRA court in erred in applying Pettersen to conclude that the Commonwealth's failure to adhere to Rule 544 did not require the court to vacate his convictions of rape of a child and statutory sexual assault. Id. at 5-8.
Rule 114 sets for the procedures for filing, docketing, and serving orders and court notices. See Pa.R.Crim.P. 114.
To be eligible for relief under the PCRA, a petitioner must establish that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2), including the ineffective assistance of counsel "which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). In this case, at all times before the PCRA court, ineffective assistance of counsel was the basis of his claim relating to the Commonwealth's inclusion of the dismissed charges of rape of a child and statutory sexual assault in the criminal information; i.e., that trial counsel was ineffective for failing to properly litigate the motion to correct the criminal information and that direct appeal counsel was ineffective for failing to pursue the issue of the dismissed charges on appeal. See Amended PCRA Petition, 4/22/2021, at 9; see also N.T., 12/8/2022, at 7-13.
Regarding claims of ineffective assistance of counsel, our Supreme Court has stated:
It is well-settled that counsel is presumed to have been effective and that the petitioner bears the burden of proving counsel's alleged ineffectiveness. To overcome this presumption, a petitioner must establish that: (1) the underlying substantive claim has arguable merit; (2) counsel did not have a reasonable basis for his or her act or omission; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance, that is, a reasonable probability that but for counsel's act or omission, the outcome of the proceeding would have been different.Commonwealth v. Reid, 259 A.3d 395, 405 (Pa. 2021) (quotation marks and citation omitted). Importantly, a PCRA petitioner must address each of these three prongs on appeal, as the petitioner bears the burden of pleading that counsel provided ineffective assistance. Id. This Court, however, need not review claims of ineffective assistance of counsel in any particular order, as the law is clear that "[a] petitioner's failure to satisfy any prong of this test is fatal to the claim." Id.
In his appellate brief, McCauley argues that the trial court erred in improperly permitting the reinstitution of the dismissed charges of rape of a child and statutory sexual assault and that the PCRA court erred in determining that under Pettersen, he was not prejudiced by the inclusion of those charges in the criminal information. See McCauley's Brief at 2-8. He does not, however, frame any of his arguments within the context of an ineffective assistance of counsel claim, see id., which is necessary to obtain relief under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii). Indeed, McCauley's appellate brief does not to cite any authority relating to the standards for establishing ineffective assistance of counsel nor does he present any argument that could be deemed allegations of ineffectiveness against trial counsel or direct appeal counsel. See McCauley's Brief at 2-8.
As our Supreme Court has explained, "a claim of ineffective assistance with regard to an issue is distinct from any claim concerning the underlying issue itself, both in nature and in the requisite elements of proof." Commonwealth v. Collins, 888 A.2d 564, 573 (Pa. 2005) (quotation marks and citation omitted). Because McCauley has failed to frame the issues he raises on appeal in the context of an ineffective assistance of counsel claim, he has failed to present a claim cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2). Additionally, McCauley has waived any ineffective assistance of counsel claim that he sought to raise on appeal because he failed to properly develop his argument in his appellate brief. See Commonwealth v. Johnson, 985 A.2d 915, 924-25 (Pa. 2009) (holding that the failure to include citations to relevant authority constitutes waiver of the issue on appeal, as it is not the role of this Court to develop an appellant's argument where the brief provides mere cursory legal discussion).
We emphasize that McCauley explicitly chose to represent himself in this appeal. "Although this Court is willing to construe liberally materials filed by a pro se litigant, a pro se appellant enjoys no special benefit" because he lacks legal training. Commonwealth v. Westlake, 295 A.3d 1281, 1286 n.8 (Pa. Super. 2023). "As our [S]upreme [C]ourt has explained, any layperson choosing to represent [himself] in a legal proceeding must, to some reasonable extent, assume the risk that [his] lack of expertise and legal training will prove [his] undoing." Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 1996). Accordingly, based on the foregoing, we conclude McCauley has failed to properly present a claim on appeal that is cognizable under the PCRA and that he therefore is not entitled to relief.
Order affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.